R. v. Sheldrick, 2017 ONCJ 16

CITATION: R. v. Sheldrick, 2017 ONCJ 16 DATE: January 26, 2017 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Mark Sheldrick Before Justice David M. Paciocco – Ottawa ON Reasons for Decision on 11(

b) Application Released January 26, 2017 Ms. J. Carvell ………………………………….…………..…………..…..for the Crown Ms. M. Thomas…………….……………………………..for the accused, Mr. Sheldrick I. Overview [1] Mark Sheldrick, who, on July 30, 2015, was charged with operating a motor vehicle with more than the legal amount of alcohol inhis blood, has brought an application to have the charge against him stayed. He is claiming that his

section 11(

b) right to a trial within areasonable time has been breached. [2] Ms. Thomas, for Mr. Sheldrick, and Ms. Carvell, for the Crown, do not agree on the net delay that has occurred. They do agree,however, that the net delay is less than 18 months. Given this agreement, I need not resolve the legal controversies that where raisedabout the actual net delay. What matters is that the parties agree that the delay in Mr. Sheldrick’s case is presumptively reasonable underthe regime established in R. v Jordan 2016 SCC 27 , [2016] S.C.J. No. 27. The onus is, therefore, on Mr.

Sheldrick to rebut thispresumption by proving, on the balance of probabilities, that the delay is in fact unreasonable. II. Legal Standards [3] In order to accomplish this, the relevant rule from the Jordan regime requires Mr. Sheldrick to establish two things: “(1) [He] took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer thanit reasonably should have”: R. v. Jordan, supra at para 82. Absent these two factors, the s.11(

b) application must fail.”

[ 4 ] His, however, is a transition case. Mr. Sheldrick was charged almost a year before the July 8, 2016 release of the Jordan decision. The Jordan majority cautioned that the framework, including the rule I have just described, is to be applied “contextually and flexibly” for cases in the system. This is both because it is unfair to expect parties to conform to standards they were unaware of at the time, and because it takes time to turn the ship.

Imposing the Jordan standards before the Crown can realistically adjust to Jordan expectations could result in the mass staying of trials, thereby damaging the repute of the administration of justice. In jurisdictions where prolonged delays are the norm, the reality that it takes time to adjust things has to be accepted during the transition period, and even for a short time after: R. v.

Jordan , supra at para 96 and 101 . [ 5 ] Based on the case law that is binding on me, I understand the approach I must take in this transition case to be as follows. [ 6 ] In determining whether the first part of the test is met – that the defence “took meaningful steps to demonstrate a sustained effort at expediting the proceedings” – I am to examine whether the defence has established that it wanted to expedite the proceedings. I am to look at what the defence did, not simply what it said: R. v.

Jordan , supra at paras 84 : “It falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s.11(

b) application) reasonably and expeditiously”: R. v. Jordan , supra at para 85 . [ 7 ] Since this is a transition case, however, the defence “need not demonstrate having taken initiative to expedite matters for the period preceding [the Jordan ] decision.” In close cases, any efforts made by the defence prior to the Jordan decision to expedite the case may nonetheless assist the defence, while “actions or inactions by the accused that me be inconsistent with a desire for a timely trial” may harm the application: R. v.

Jordan , supra at para 99 . [ 8 ] In determining whether the second part of the test is met – that “the case took markedly longer than it reasonably should have” – I am to employ my knowledge of this jurisdiction, including how long a case of [this complexity] typically takes to get to trial in the light of the relevant local and systemic circumstances”: R. v. Jordan , supra at para 89 .

A “birds eye view” is encouraged, rather than a precise calculation that entails parsing each day or month. [ 9 ] I am also to consider “whether the Crown took reasonable steps to expedite the proceedings,” bearing in mind that the Crown is not to be held to a standard of perfection: R. v. Jordan , supra at para 87, 90 . These Crown efforts can include “genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses”: R. v.

Jordan , supra at para 8 . [ 10 ] Given that this is a transition case, I also have to consider whether the institutional delay that occurred was reasonably acceptable in this jurisdiction under the Morin framework before the Jordan decision was released: R. v. Jordan , supra at 100. This is because the parties are entitled to have reasonably relied on the law as it stood at the time when shepherding the progress of the case: R. v.

Jordan , supra at para 103 . [ 11 ] I have also been cautioned that “a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system” than they will under the Jordan framework. This should be a sobering reality for those considering

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b) applications in cases with presumptively reasonable delay, since even after the Jordan framework is fully implemented, “stays beneath the ceiling [in post- Jordan cases are] to be granted only in clear cases”: R. v. Jordan , supra at paras 101, 82 . [ 12 ] Of interest, the Jordan decision does not appear to leave room to consider case-specific prejudice, or the seriousness of the offence, in transitional cases where delay is below the presumptive ceiling. Those factors are described as relevant in Jordan , supra , only in transitional cases that exceed the ceiling: R. v.

Jordan , supra at para 96 . [ 13 ] If this is what the Jordan Court intended, it may be because of its attempt to account for prejudice “in the ceiling,” and its expressed confidence that “we can expect accused persons who are truly prejudiced to be proactive in moving the matter along”: R. v. Jordan , supra at para 109 . On this thinking, if the case is below the ceiling, the delay will not generally be long enough to turn on prejudice caused by delay.

For its part, the inquiry into proactive steps by the accused provides a surrogate way of identifying those specific cases where individuals “are truly prejudiced” to the point where that prejudice does become material.

[14] In spite of this, in R. v. Coulter 2016 ONCA 704 , [2016] O.J. No. 5005 the Ontario Court of Appeal evidentlyinterpreted Jordan as including a prejudice inquiry in transition cases involving presumptively reasonable delay. There the Court lookedat the prejudice delay caused to Mr. Coulter, whose “net delay” was less than eighteen months. In light of this, in Ontario, prejudice is tobe considered even where the delay is presumptively reasonable. [15] Of the two components of the legal test that Mr.

Sheldrick must meet in order to succeed in this application - that “(1) he tookmeaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonablyshould have” - it is convenient to begin with the latter requirement. III. Did the Case Take Markedly Longer than it Reasonably Should have? [16] Without question, Mr. Sheldrick’s case has taken longer to prosecute than it ordinarily would have.

In this jurisdiction, based onmy experience, a basic alcohol driving case of this kind typically appears for trial approximately one year after the alleged offence. [17] In Mr. Sheldrick’s case the alleged offence occurred on July 24, 2015. An initial date was set for trial on September 21, 2016,close to 14 months later. When that trial date arrived the matter was adjourned, on consent, because the Crown file had beenmismanaged. [18] Specifically, the parties agree that the Crown cannot prosecute Mr. Sheldrick’s case successfully without expert evidenceconfirming that, at the time of driving, Mr.

Sheldrick’s blood alcohol content exceeded the legal limit. This is because the Crown isunable to rely on the “presumption of identity” in section 258(1)(c), that Mr. Sheldrick’s blood alcohol content was the same at the timeof driving as it was at the time the breath tests were administered, as the tests were not taken within the two hour period that isprerequisite to the presumption applying. [19] The Crown had arranged for an expert toxicologist to be available for trial, who could “relate back” the readings.

Unfortunately,due to its movement to a computerized case management system, the Crown failed to provide notice to the defence of its intention to callan expert, pursuant to

section 657.3(3). [20] Based on the state of disclosure, defence counsel believed it had identified a fatal flaw in the Crown’s case. It therefore chose notto pursue a right to counsel Charter claim it was going to rely upon, and came to court expecting the charge to be dismissed. When Mr.Sheldrick’s counsel, Mr. Sellar, arrived for trial he found out, for the first time, that the Crown intended to call an expert witness and hadone available. [21] As a result, Mr. Sheldrick was entitled to an adjournment, both to prepare for the expert evidence, and to prepare its Charterapplication.

The trial was therefore adjourned, on consent. [22] In keeping with local court administrative rules, the trial date for an adjourned trial cannot be set out of the original trial. Indeed,a new “judicial pretrial” is required if it is expected that the case will last a day or more, as in this case, where the original trial estimatewas two days. [23] When Justice Hoffman granted Mr.

Sheldrick’s adjournment, a judicial pretrial was therefore scheduled for October 13, 2016,and on that day new trial dates were set for February 6 and 7. [24] The total delay from the charge to the anticipated end of the trial is now 18 months and 8 days rather than the usual 12 months. [25] The question before me, however, is not whether the trial took markedly longer than it normally would.

It is the more nuancedone of whether this trial “took markedly longer than it should have.” This cannot be the same measure, given the number of factors atrial judge is to consider in making this determination, particularly in transition cases. As indicated, the case law makes clear that:

(1) Under the Jordan framework, whether the Crown took reasonable steps to expedite the proceeding can influence the determinationof whether the case took longer than it should have;

(2) In transition cases, since the parties are reasonably entitled to rely on the law, the measure of how long a case should have taken isinfluenced by the degree of compliance with Morin guidelines;

(3) In transition cases, it is expected that the concept of “longer than it should have” has been calibrated to ensure that stays are noteasy, but rather difficult to obtain; and

(4) The degree of prejudice to the accused caused by the delay can influence the assessment of how long the case should have taken. [26] In this case, I see no signs that the Crown took reasonable step to expedite the proceedings, at least not before the initial trial wasadjourned. At that point it can be said that the Crown offered early continuation dates, a point I will return to below. [27] Did the Crown reasonably rely on the law, as adumbrated by the Morin guidelines?

Put more simply, how would a delayapplication in this case have fared, applying the Morin guidelines? [28] Those guidelines required a court to consider four factors, three of them dedicated to identifying Crown delay, namely, (1) theoverall length of the delay; (2) waiver of the individual time periods, and (3) the reasons for the various delay. If the imputable or Crowndelay exceeds the Morin guidelines of eight to ten months in provincial court, the determination of whether

section 11(

b) was violatedwould depend upon the balancing of prejudice against the societal interests of a trial on its merits: R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1. [29] In my view, great insight can be gained into whether a transitional case took markedly longer than it should, by consulting theMorin guidelines. After all, as the Jordan Court indicated, its decision cannot be taken to “automatically transform what wouldpreviously have been a reasonable delay into an unreasonable one”: R. v. Jordan, supra at para 102. By the same token, the change to theJordan framework was not intended to make the

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b) right less accessible. It is meant to simplify the analysis and offer brighterlines that will encourage a “culture of compliance.” [30] As indicated, the overall length of delay in this case is 18 months and 8 days, well outside the Morin 10-12 month guidelines. Theimmediate question, however, is how much of that delay really counts against those guidelines as Crown delay. [31] There is no suggestion that any time periods have been waived.

The “reasons for delay” inquiry does, however, significantlyabridge the period of Crown delay. [32] First, the “inherent time requirements of the case” must be deducted, because time that is inherent in conducting a case is neutraldelay. [33] The “inherent time requirements” includes the “intake period,” the period needed to get ready to set a trial date. During thisperiod counsel is retained, disclosure is received, instructions are obtained and, in appropriate cases, resolution discussions occur. [34] The ordinary reasonable “intake period” in simple drinking and driving cases is two months, or 60 days: R. v.

Meisner (2003). 57W.C.B. (2d) 477 at paras 30-32 (Ont. S.C.J.). [35] In my view, however, the actual intake period that is utilized in the case should apply and be treated as neutral, unless that actualintake period is protracted by Crown delay. After all, the search is for Crown delay. Here, the intake period lasted from July 30, 2015 toNovember 5, 2015, a total of 98 days, and there was no Crown delay. [36] The only hint of Crown delay suggested is that Mr. Sellar, for Mr.

Sheldrick, did not want a Counsel Pretrial to be conducted, ashe expected the matter to go directly to trial, but a Pretrial was nonetheless conducted. That occurred, however, because Counsel Pretrialsare mandatory under the Court’s administrative protocol, in the hope of encouraging settlement. The prosecution was bound to comply

with this directive. In my view this 98 days intake period is neutral delay. [37] The time that is required for counsel to prepare for trial is also “neutral time,” since institutional or systemic delay is “the periodthat starts to run when the parties are ready for trial but the system cannot accommodate them”: R. v, Morin at para 16, 18 and 26-27,and see R. v. Lahiry 2011 ONSC 6780 , [2011] O.J. No. 5071 at para 27 (Ont. S.C.J.). [38] While the amount of time to prepare for trial is short in routine drinking and driving cases (R. v.

Lahiry, supra at para 31), where,as in this case, there are Charter motions and expert evidence, preparation time is not negligible. This is because the Crown has toarrange for an expert toxicologist by submitting the case file, and allowing reasonable time for the expert to prepare a report. Then 30days of notice is required under

section 657.3. After disclosure is received, the defence requires time to prepare a Charter motion andserve it at least 30 days before the trial. [39] I take Ms. Thomas’ point that, during the intake period, on September 10, 2015, the Crown was told that the defence wanted atrial. It may well be that the Crown could have set the train in motion immediately, preparing its case before the intake period evenended. Still, it would not be reasonable, in my view, to expect the Crown to formalize arrangements and to prepare an expert witnessnotice until a trial date has been confirmed.

Even taking the Crown’s prescience into account, and assuming that the defence can respondrapidly in preparing its Charter materials while intake is still underway, a delay of at least 30 days would be needed after a trial date isconfirmed for the parties to be ready for trial. Forty-five days is more realistic, but I will work with 30. [40] According to Morin principles there is other neutral time in this case. Where the reason for a delay is that defence counsel is notavailable for trial when the Court and the Crown would be, the delay is neutral: see R. v. Lahiry, supra at para 70.

This is sensible sincetime during which defence counsel is not ready but the Court and the Crown are is not Crown delay. [41] In this case, the Crown and Court were ready to start Mr. Sheldrick’s trial as early as July 18 and 19, 2016. The reason why theinitial trial date was not set until 62 days after July 18, 2016, is that Mr. Sellar was not available. [42] The next period of delay was caused, of course, by the Crown because of its failure to file its expert witness notice.

However, it ismy view that where the Crown and Court are ready to proceed with a rescheduled trial, and the defence is not, Crown responsibility forthe delay that created the need to reschedule the trial ceases. [43] That is what occurred in this case. The Crown and Court were available to reschedule the trial as early as October 20-21, 2016,but the defence declined those dates and other dates, leading to the February 6 and 7, 2017 trial dates that are now pending. [44] I take Ms.

Thomas’ point that it may seem unfair to hold the defence responsible for delay that would never have occurred hadthe Crown not caused the initial trial dates to become lost, but principles of remoteness have to apply. It is not sensible to adopt a regimeof perpetual responsibility in which the defence can decline dates after a Crown-caused adjournment yet the continually accumulatingdelay continues to be Crown delay. In my view, where the defence declines an offered date for continuation that is a supervening causefor any delay that subsequently occurs. [45] Ms.

Thomas conceded in argument that perpetual responsibility cannot apply. Instead, she suggested that a case-by-casedetermination should be made, in which the Crown would continue to bear responsibility where the decision of the defence to decline adate is reasonable.

She noted that, in this case, for example, the defence was offered new trial dates that were only one month from theinitial trial dates, and that it is unrealistic to expect defence counsel to be available on such short notice given their other trialcommitments. [46] This is an attractive submission, but this ad hoc approach is not without its problems. It does not sit easily with two tenets that arecentral to

section 11(

b) jurisprudence. [47] First, the inquiry is not about blame. It is an effort to identify Crown delay, and where the Crown and the Court are ready toproceed but the defence is not, that is not Crown delay.

[ 48 ] Second, under the Morin framework the Crown is expected to “take reasonable steps to expedite the proceedings,” including by “adapting to evolving circumstances as the case progresses”: R. v. Jordan , supra at para 8 . The message is that steps should be taken to get the delayed case on, as soon as possible. Doctrines that discourage prompt action by the Crown are not in keeping.

In my view, offering early dates after a Crown caused adjournment is exactly what is to be expected. [ 49 ] Assuming this to be the law, the delay that occurred between the dates for the rescheduled trial that the defence declined on October 20-21, 2016, and the set dates of February 6-7, 2017, is not Crown delay. It is, at best neutral if based on other professional trial commitments made by defence counsel, or it is defence delay if the dates were declined for personal reasons.

This is not clear because the reasons for defence unavailability were not put on the record and I have no evidence before me explaining why those dates were declined. [ 50 ] For this reason, even if an ad hoc approach is taken where the reasonableness of the decision by the defence to decline dates is considered, the same outcome arises here. The onus in a

section 11(

b) application is on the applicant, and I have no evidentiary basis for finding that it was reasonable for the defence to decline these earlier dates. [ 51 ] Applying either standard, this 109 days of delay is not Crown delay. [ 52 ] Based on this overall evaluation, the systemic and Crown delay that counts against Morin guidelines after the neutral delay of 299 days (98 + 30 + 62 + 109) is removed from the total delay of 557 days, is 258 days, or approximately 8.6 months. This is well within the Morin guidelines.

This delay would not, in this jurisdiction, be considered intolerable. [ 53 ] Quite simply, given the limited Crown delay in this case, there is no need for me even to consider the evidence of prejudice, since even significant prejudice will not suffice to produce a

section 11(

b) violation in a transitional case where the Crown delay falls well within appropriate guidelines. This is why, under the Morin regime, prejudice did not have to be considered unless the guidelines were exceeded. [ 54 ] For the foregoing reasons, it cannot be said that this case took longer than it should have to prosecute, let alone “markedly longer” than it reasonably should have. IV. Conclusion [ 55 ] As indicated, absent both a finding that (1) the accused took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have,” a s.11(

b) application must fail. Since Mr. Sheldrick has failed to establish this second necessary precondition to success, I need not consider the first. [ 56 ] I realize that the Crown dropped the ball here, and that had it not done so, the trial could have been finished in September of 2016. This, however, is not the inquiry I am required to conduct. Based on the one I am charged with applying, Mr. Sheldrick’s

section 11(

b) rights have not been violated. Released January 26, 2017 _______________________ The Hon. David M. Paciocco